I happen to believe this is political given the makeup of the commission and the testimony on the record refuting his claims.

I agree completely that it was political. Reading the questions section it is clear that those on the panel already had strong views on AA. This is true of both sides though. The suggestion of the panel that made the most sense to me personally was that an independent grant organization like the National Academy of Sciences should fund research in the area. There are a number of disputes in the data that could be settled with more exhaustive research.

I would love to see more actual hard data on this topic. That said, I don't think Lempert will like it.

Thanks for your "contributions," Lindbergh. Uh, let me summarize: Sander once married a black woman, there's nothing political about the USCCR, you didn't face stereotype threat, I'm a nobody, the American left is full of brutes, affirmative action causes racism (because you said so), and you'll read when you damn well please but for now it's more fun to play smart. Did I miss anything?

Do you actually think it's helpful (or rational) to suggest that people who have a different policy ideas from you about this admittedly thorny issue don't care about "fairness"? I recognize that you and I (together with people who take more extreme positions) are motivated precisely by a deep concern about what's fair and just. The reason the same hackneyed phrases aren't interesting is because they don't get to the heart of our disagreements. The argument where you say, "AA's not fair to Asians," and I say, "A world without AA isn't fair to African Americans," and whatever other slogans we can bandy about simply doesn't get out of the sandbox.

As for whether the commission is motivated by political concerns, I think its adoption of the Sander study when it had access not only to Lempert's testimony but to Rothstein/Yoon, Ho, Barnes, and Ayres/Brooks is res ipsa loquitur. Combined with the quality of the commission's questions as summarized in the report from the hearings and what I know about the composition of the committee, I could probably make out a pretty good case if I thought doing so were worthwhile (and if you want to discuss this further, I'm willing to do so). In any case, the changes in the commission's membership following Berry's investigation of the 2000 Florida elections debacle and the deaths of other Democratically appointed members are surely more dispositive of the commission's political leanings than the fact that Richard Sander has a black child.

I would love to see more actual hard data on this topic. That said, I don't think Lempert will like it.

All of the researchers on the topic lament the quality of the data. I'm sure they would all like more study (and more information from LSAC).

Since you seem concerned about methodological issues, there are good links at the beginning and end of this thread (which, alas, didn't get very interesting -- despite good-faith contributions from Trollik/waitlisted, an ardent opponent of AA).

And, I believe, still has a black son. In addition, an examination of his resume indicates that he has long been an active, committed liberal, in addition to being a professor at a top 15 law school: http://www.law.ucla.edu/home/index.asp?page=678. If Sander has any apparent bias here, it would presumably relate to protecting his son.

I guess there's brutes everywhere, and the left, globally speaking, has certainly killed far more people in the last century than the right. However, my point here is simply that elements of the left appear to care little about basic fairness, equity, or individual rights generally as they pursue "equality."

Other elements probably just don't realize that certain polices designed to create more fairness are actually causing serious harm and injustice because of they way they're executed. That's why I'm discussing those problems.

Do you seriously dispute that AA increases racism among working-class whites and asians? Do you really think people with limited opportunities don't care if other people, often with more opportunities, get additional advantages and preferences, even if they're objectively less qualified? Do you really think this is a recipe for racial harmony?

No one is claiming that AA is the only cause of racism today -- racism has been around forever. However, I don't think any honest, thoughtful person can deny that it increases resentment among certain white/asian subgroups, and understandably so. Whatever you think about AA, it's clearly a form of officially-sanctioned racial discrimination, and such policies inevitably create resentment. The only question is whether the benefits outweigh the negatives.

The argument where you say, "AA's not fair to Asians," and I say, "A world without AA isn't fair to African Americans," and whatever other slogans we can bandy about simply doesn't get out of the sandbox.

But I think we first need to admit that AA (as currently constructed) really isn't fair to Asians, or many whites. Once we do that, we can start asking if the benefits of AA outweigh the injustice it creates in many situations. We can also start asking if perhaps there more precise, thoughtful ways of seeking equality of opportunity instead of relying upon simplistic, prejudicial assumptions that perpetuate stereotypes, increase racial resentment, and stigmatize minority achievement. (All of which, of course, make it harder to achieve true equality of opportunity.)

As for whether the commission is motivated by political concerns, I think its adoption of the Sander study when it had access not only to Lempert's testimony but to Rothstein/Yoon, Ho, Barnes, and Ayres/Brooks is res ipsa loquitur.

Well, actually, the commission simply appeard to recognize that Sander had a point, and requested further study. However, even if they had "adopted" it, to assume a commission is biased simply because they favor a common-sense study, written by a liberal, over the muddy objections of a few detractors reveals a significant bias of your own. Isn't it possible that the study simply makes sense, and in fact is worthy of further investigation?

However, I agree that the commission is motivated by a specific political concern (as it should be): to ensure the rights of all americans to fair and equitable treatment. It currently appears to be proceeding appropriately (if cautiously) in that vein.

Combined with the quality of the commission's questions as summarized in the report from the hearings and what I know about the composition of the committee, I could probably make out a pretty good case if I thought doing so were worthwhile (and if you want to discuss this further, I'm willing to do so). In any case, the changes in the commission's membership following Berry's investigation of the 2000 Florida elections debacle and the deaths of other Democratically appointed members are surely more dispositive of the commission's political leanings than the fact that Richard Sander has a black child.

Well, you can believe you want about the commission, or the Democrats' failure in 2000. What's really salient, however, is the study itself (correct?)

Let me ask you a question: What exactly do you disagree with in Sander's study?

1. Do you dispute that minorities are frequently admitted to schools with lower objective criteria? (Isn't this the whole point of AA / preferential admissions?)

2. Do you dispute that this creates a mismatch between such students and the general competition level at those schools?

3. Do you dispute that when students with lower numbers (of any ethnicity) are admitted to more competitive programs, it usually make it more difficult for them to thrive and emerge at the top of their class?

4. Do you dispute that students with lower numbers (of all ethnicities) tend to cluster near the bottom of their class, and are more likely to drop out?

5. Do you dispute that students with lower numbers (of all ethnicities) also therefore tend to struggle with the bar exam more?

To me, this is all simple common sense. If you admit anyone with signficantly lower numbers into competitive programs, you're going to see such problems arise. In the old days, when admission was open, you saw mass attrition as a result. The above problems are simply a reflection of that dynamic.

It's also important to recognize that a modification of AA would not prevent minorities from attending or graduating law school. As Sanders notes, it would simply mean that they would attend different schools, where their number are comparable. (In California after prop 209, the number of minorities (and URM's) actually increased -- only their distribution changed.) They would also tend to place better in their class, pass the bar at higher rates, and emerge as more confident attorneys. If judges, schools, and top firms want more minorities (which they apparently do, according to the report), they can recruit from a broader array of schools.

In the name of friendly discussion, I'll skip the quote war and answer your questions in earnest.

1. Do you dispute that minorities are frequently admitted to schools with lower objective criteria? (Isn't this the whole point of AA / preferential admissions?)

No. I would like to add a few things here, however. A lot of people who discuss affirmative action, particularly its detractors, (1) overestimate its effect on white and Asian American admissions and (2) ignore the real likelihood that admissions committees already do some forms of socioeconomic affirmative action.

First, it's important to recognize that there just aren't very many black and Latino students in most law schools, and not all of them are admitted based on some affirmative action consideration. Lempert et al. 2005 estimated that in a world without any form of affirmative action (including socioeconomic consideration), the percentage of black students at top law schools would drop from 7-12% down to 1-2%. That is, according to their study, somewhere between 6 and 10%, at most, of the most elite law school classes comprise black students who might not have been admitted absent affirmative action programs. Yet Sander himself estimates the overall number of students admitted based on factors other than their numerical entry credentials at a mere 8% -- a number that includes not only students who benefitted from traditional race-based affirmative action but also legacies, students with extraordinary extracurricular and work achievements, students admitted based upon some form of socioeconomic affirmative action, and students who demonstrate that they have overcome some specific obstacle such as a learning disability, test-taking problems, serious illness, etc.

Traditional race-based affirmative action thus accounts for a very small percentage of admissions. It has little impact on the admissions chances of white and Asian American applicants; those who are not admitted to their first-choice schools because affirmative action programs reduce the number of spots available to them (a) are likely marginal candidates, (b) receive admission to schools at which their numbers are closer to the median, and (c) would be unlikely to fare better in an admissions regime in which schools considered only numerical entry credentials. (I realize that you have elsewhere proposed replacing race-based affirmative action with a form of socioeconomic affirmative action where race serves as a tiebreaker, and you may not actually believe that law schools, law students, and the profession are best served by an exclusive reliance on numerical credentials. I don't understand why your objections here about the importance of these credentials would not also apply to students who receive extra consideration based on socioeconomic factors, but I agree with you that socioeconomic factors should be taken into account in law school admissions.)

Using Sander’s own model on 2003 and 2004 data (Sander uses 2001, an aberrant year due to September 11), Harris & Kidder 2005 found that black law school admissions overall would have decreased by 24% and 33% respectively had affirmative action programs not been in place.

Yes, affirmative action programs are very significant in terms of the admissions chances of URM applicants; they are much less significant in terms of the admissions chances of other applicants.

Second, there is plenty of evidence that schools do give special consideration to applicants who demonstrate socioeconomic disadvantage or obstacles. There are diversity essays, resumes, check-boxes for being the first in one’s family to attend college or professional school, sections on parental education and employment, and a grid for the number of hours/week worked during the school year. I am concerned that admissions rely too heavily on class-biased factors like unpaid internships, volunteer opportunities, paraprofessional employment, and travel, but I nonetheless believe that schools would not waste the time to ask about these things if they didn’t come into play at some point in admissions decisions.

2. Do you dispute that this creates a mismatch between such students and the general competition level at those schools?

Yes, at least to the extent the mismatch hypothesis states.

3. Do you dispute that when students with lower numbers (of any ethnicity) are admitted to more competitive programs, it usually make it more difficult for them to thrive and emerge at the top of their class?

Yes, at least to the extent the mismatch hypothesis states.

4. Do you dispute that students with lower numbers (of all ethnicities) tend to cluster near the bottom of their class, and are more likely to drop out?

No, but it appears from more supple research on the subject that there are actually different groups of students at the bottom of the class: (1) white and ORM students with lower entry credentials and (2) URM students with lower entry credentials. I split these groups up because the LSAT tends to vastly overpredict URM performance in law school and it therefore doesn't make a lot of sense to correlate URM overrepresentation at the bottom of the class with entry credentials. Indeed, URMs at schools where their entry credentials match the white medians (where you might expect them to attend without affirmative action) also tend to cluster at the bottom of the class. See, e.g., Ayres & Brooks 2005, which limits the analysis, as Sander does, to black students.

5. Do you dispute that students with lower numbers (of all ethnicities) also therefore tend to struggle with the bar exam more?

To me, this is all simple common sense. If you admit anyone with signficantly lower numbers into competitive programs, you're going to see such problems arise. In the old days, when admission was open, you saw mass attrition as a result. The above problems are simply a reflection of that dynamic.

Common sense is great, but occasionally reality trumps it. The LSAT isn't as important for all groups as you want it to be. As I mentioned above, part of the problem with Sander's analysis is that when you examine the performance of black law students who attend schools they would likely attend absent affirmative action programs (where their entry credentials are around the median), their law school grades were still in the bottom of the class.

What Hastings and some other California schools have done in the wake of Proposition 209 is to start offering better academic support (LEOP, etc.) to all students, with the expectation that students from disadvantaged or inferior educational backgrounds will benefit. This effort provides a partial explanation for the improvement in URM graduation rates from the California schools over the last several years. The affirmative action supporters who testified at the USCCR hearings encourage schools to adopt similar approaches. When law schools do a better job of supporting students, they avoid some of the problems you mention.

This result comports with a recent study by Katherine Y. Barnes who found that discrimination effects (“hostile environment”) and other facets of law school culture were likely the most important factors in the low success rates for URM law students and graduates. If you choose to read any one article in the debate beyond Sander’s original piece, I encourage you to read this one. Barnes clearly discusses the limitations of the data and the methodological flaws in Sander’s and others' work, explains her method, and proposes ways to improve research on the subject. Also, her positive and constructive tone is much to her credit.

It's also important to recognize that a modification of AA would not prevent minorities from attending or graduating law school. As Sanders notes, it would simply mean that they would attend different schools, where their number are comparable. (In California after prop 209, the number of minorities (and URM's) actually increased -- only their distribution changed.) They would also tend to place better in their class, pass the bar at higher rates, and emerge as more confident attorneys. If judges, schools, and top firms want more minorities (which they apparently do, according to the report), they can recruit from a broader array of schools.

Sander’s statistical analysis on this last point has been squarely and persuasively disputed by Ayres & Brooks, Barnes, and Ho, among others. One main problem is that Sander assumes that black students who did not benefit from affirmative action (those who attended schools where their numbers would be at the white median) would have the same bar passage rates as white students at those schools. As I have discussed above, black students who are already at these schools do not pass the bar at the same rates as whites and, in fact, their bar passage rates are lower than those of black students with the same numerical entry credentials who attend higher-ranked schools.

One explanation for this difference is that these schools offer superior academics and more resources to support students who need help. Another is that the students at the higher-ranked schools may have had unobservable (non-numerical) qualifications that helped them earn admission to the higher-ranked schools and these qualifications also make them more likely to pass the bar. (But with respect to the latter account, if the these unobservable qualifications are so salient to bar passage rates -- and admissions committees do such a good job of assessing them -- it is difficult to sustain the premise that numerical credentials control professional outcomes, on which the mismatch hypothesis depends.)

I haven’t seen the most recent research on increased URM admissions in California law schools post-209, and I didn’t realize admissions have increased as much as you say. (I’d be interested to read more about it if you’d like to provide an article or something.)

To the extent that the California law schools have improved their URM enrollment numbers since the 1997 crisis (when there was only one black student, a deferred admit, in Boalt’s entire entering class), they have done so largely by hiding the ball. Boalt and UCLA, for instance, now de-emphasize the LSAT in favor of the more race-neutral UGPA. They have also focused recruiting efforts on HBCUs, lower-ranked schools, and minority civic associations and encouraged alumni and other private organizations to set up scholarships for URM students. Finally, they give greater attention to “soft factors” like essays and work experience throughout the admissions and scholarship-determination process. I think all of these efforts are good ones, but I don’t know why those who oppose affirmative action would prefer such cloaked measures to an open consideration of race, one which could then be evaluated for fairness and tailoring concerns by the public.

Nonetheless, this more supple admissions system is something we should demand from all schools (they do get good money for their efforts, after all). Indeed, the graduation and bar passage rates for URMs at these schools is going up. If nothing else, this proves that the LSAT is not the be all and end all when it comes to becoming a lawyer.

You have mentioned several times that you are non-white, presumably to underscore your belief in racial equality. Since you mentioned here that you weren't affected by stereotype threat, I thought it might be helpful for you to tell us more about your background -- at least whether you are a member of a minority group that is thought to face stereotype threat. Of course there are some people in every group who will not suffer in testtaking situations. I just want to understand if your experience is exceptional somehow.

I also wanted to point out that Sander himself acknowledges that stereotype threat exists. He simply argues that it is difficult for critics to assess its effects on performance. (Sander 2004, 424)